Heymann a Name I Call Myself
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UCILR V2I2 Assembled v4 (Do Not Delete) 7/14/2012 2:14 PM A Name I Call Myself: Creativity and Naming Laura A. Heymann* In recent years, various disputes involving the use of creative works have demonstrated how trademark-related concerns lurk at the heart of what are ostensibly copyright-related claims. When recording artists such as Jackson Browne or the members of Heart object to the unauthorized use of their songs in connection with a political campaign, they are most likely not troubled about the loss of revenue resulting from the use; rather, they are likely concerned that the public will wrongly assume that the use of the song indicates that they have endorsed the political candidate. But because it is sometimes easier for them to bring a successful copyright claim than a false endorsement claim, we risk an overbroad result: an injunction against the use of the work altogether, despite its expressive benefits, rather than a narrower injunction requiring a disclaimer or similar information- correcting device. Naming practices can, on occasion, illustrate the reverse trademark/copyright divide: disputes that more naturally fit a trademark- related framework but that actually embody copyright-related concerns. For example, innumerable advice columns have featured some variation of the following question: “We chose a lovely, original name for our soon-to-be born baby and told my sister-in-law about it. Now she has named her child, born last week, the exact same name. I can’t believe she stole our baby name. Should I ever speak to her again?” Although naming is typically seen as trademark-related, part (or all) of what causes this anguish is a copyright-related concern: the creativity that went into choosing, finding, or inventing the name and, relatedly, a desire to be recognized for that creativity. * Class of 2014 Professor of Law, College of William & Mary, Marshall-Wythe School of Law. Many thanks to Michael Adams, Mark Badger, Eric Goldman, Justin Hughes, Greg Lastowka, Mark Lemley, Mark McKenna, Brent Nicholas, Zahr Said, Michal Shur-Ofry, Jessica Silbey, David Simon, Eva Subotnik, Peter Swire, John Tehranian, Rebecca Tushnet, and the participants in the “Governing the Magic Circle: Regulation of Virtual Worlds” symposium at the UC Irvine School of Law, for which this piece was written, and the 2011 Intellectual Property Scholars Conference. Thanks also to John Alford, Patrick Berry, and Stefan Oehrlein for research assistance and to the staff of the UC Irvine Law Review. One of the risks of writing about online environments is the speed at which they change. The citations in this Article were accurate as of March 29, 2012, but may have since become outdated. 585 UCILR V2I2 Assembled v4 (Do Not Delete) 7/14/2012 2:14 PM 586 UC IRVINE LAW REVIEW [Vol. 2:585 Social networks, virtual worlds, and other forms of electronic interaction that require users to choose identifiers to facilitate communicative exchanges offer interesting environments in which to consider this intersection of trademark and copyright interests. If users select names as much for their expressive power as for their functional ability to distinguish one user from another, as they appear to do, what does that tell us about the kinds of creativity that matter to noncommercial creators? From where do some participants get the idea that names can be owned and, therefore, “stolen”? And what, then, do these instincts tell us about the interests and rhetoric that are typically invoked in discussions of intellectual property law? Introduction ..................................................................................................................... 586 I. Naming and Creativity ................................................................................................ 593 II. Naming, Creativity, and the Law ............................................................................. 600 A. Trademark Law ............................................................................................. 601 B. Copyright Law ............................................................................................... 607 III. Naming and Norms Online .................................................................................... 612 A. The Desire for Creativity ............................................................................. 614 B. Naming and Uniqueness .............................................................................. 618 Conclusion ........................................................................................................................ 622 Proper names are poetry in the raw. Like all poetry, they are untranslatable. —W.H. Auden1 INTRODUCTION Readers of advice columns have no doubt at least once come across something like the following (hypothetical) missive: “We chose a lovely, original name for our soon-to-be born baby and told my sister-in-law about it. Now she has named her child, born last week, exactly the same name. I can’t believe she stole our baby name. Should I ever speak to her again?”2 1. W.H. Auden, Names, Proper, in A CERTAIN WORLD 267, 267 (1970); cf. John Colapinto, Famous Names, NEW YORKER, Oct. 3, 2011, at 38, 39 (discussing naming consultant David Placek’s view that “the best brand names, like poems, work by compressing into a single euphonious word an array of specific, resonant meanings and associations,” but noting that Placek’s clients are typically more concerned with effectiveness than art). 2. See, e.g., Gail Saltz, My Sister-in-Law Stole My Baby Name! What to Do If Someone Wants to Use the Same Moniker for Their Child, TODAY (Mar. 21, 2007, 5:38 PM), http://today.msnbc.msn.com/id/ 17724692/ns/today-relationships/t/my-sister-in-law-stole-my-baby-name. The scenario is common enough to have been mentioned in an episode of Sex and the City and an episode of Seinfeld. See Sex and the City: The Baby Shower (HBO television broadcast Aug. 9, 1998) (depicting Charlotte complaining about a childhood friend who “stole [the] baby name” that she invented when she was eleven years old); Seinfeld: The Seven (NBC television broadcast Feb. 1, 1996) (depicting George’s outrage when his UCILR V2I2 Assembled v4 (Do Not Delete) 7/14/2012 2:14 PM 2012] A NAME I CALL MYSELF 587 The selection or invention of a name for one’s child—or one’s pet, product, or avatar—is frequently associated with such property-related rhetoric. It should not be surprising in a society where naming rights for buildings go for millions of dollars3 that one’s name is thought of as property and thus as something that might be bought, sold, or stolen.4 Marketers of consumer data have accustomed us to the notion of names as the subject of commerce, a position some online environments anticipate when they explicitly restrict the sale of usernames.5 Our continuing (and unfortunate) awareness of the crime commonly known as identity theft has also trained us to think of the indicia used to identify ourselves in society, including our names, as things that can be owned. And various literary metaphors invoke the concept of one’s name as the hook on which reputation hangs; when one’s reputation is besmirched, it is one’s name that is seen as damaged or pilfered goods.6 When parents or parents-to-be complain of someone having “stolen” the name they have chosen for their baby, this property rhetoric is not likely to have been driven by legal concerns. Indeed, the law has a particularly utilitarian view of names as property. Names have value in the law largely as a result of their denotative function—that is, their ability to identify an individual or entity. Thus, the use of a name is unlawful when that use confuses or misleads consumers (as in trademark law’s prohibition of the use of another’s trademark to cause confusion as to source), or when the name is used to obtain an unauthorized economic benefit (as in a false endorsement case, identity theft, or a violation of the right of publicity). The same is true in environments governed by contract rather than by tort, such as terms of service on social networking sites that prohibit impersonation of other users. These concerns are not likely to be relevant to the girlfriend reveals the name for his future first-born child to her cousin, leading the cousin to give it to her child: “It’s my name. I made it up. You can’t just steal it.”). 3. See, e.g., Ann Bartow, Naming Rights and the Physical Public Domain, 40 U.C. DAVIS L. REV. 919, 926–29 (2007); Joseph Blocher, School Naming Rights and the First Amendment’s Perfect Storm, 96 GEO. L.J. 1, 9 (2007). 4. Courts’ rhetoric occasionally contributes to this notion. See, e.g., Perfection Mfg. Co. v. B. Coleman Silver’s Co., 270 F. 576, 577 (7th Cir. 1921) (referring to the “business parasite” who “first steals another’s name, then his business, and finally attempts to deceive the retail trade”); Pump, Inc. v. Collins Mgmt., Inc., 746 F. Supp. 1159, 1166 (D. Mass. 1990) (“A world-famous group such as Aerosmith, enjoying a strong base of loyal teenage support, would have absolutely no reason for stealing the name of an unknown band to sell its records. Indeed, such action would be irrational.”). 5. See, e.g., Dwyer v. Am. Express Co., 652 N.E.2d 1351, 1356 (Ill. App. Ct. 1995) (affirming the dismissal of a misappropriation claim based on the rental of cardholder information for marketing purposes, noting that the value came from defendants’ aggregation of names on the list); The Twitter Rules, TWITTER HELP CENTER, http://support.twitter.com/articles/18311-the-twitter-rules